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Meeting the Test for Family Status
As followers of our blog posts will know, both federally and provincially regulated employees have a right to equal treatment without discrimination on the grounds of race, religion, sex, ethnic origin, disability, age, marital status and family status.
However, the law also recognizes covert discrimination, and continues to evolve by adding protections from discrimination. For instance, in Ontario, these rights are infringed where “…a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination…” unless it is “bona fide” in the circumstances.
In employment law, an ever-evolving ground of discrimination is that of family status, defined in the Ontario Human Rights Code as “the status of being in a parent-child relationship”. What likely comes to mind for the “parent-child” relationship is the role of being a parent, however the law also protects a child who is a care giver for an ailing parent.
In order to successfully prove that an employee has been discriminated on the basis of family status, the employee must meet a specific test, yet the debate over what test the employee is required to meet continues.
The recent Ontario Human Right decision in Misetich v Value Village Stores Inc., 2016 HRTO 1229 (CanLII) (“Misetich”) has continued this debate. In Misetich the Tribunal acknowledged that different courts and tribunals apply different tests for family status discrimination, as well as different tests within family status for childcare and eldercare. The tribunal rejected the Federal Court of Appeal’s decision in Canada (Attorney General) v. Johnstone, 2014 FCA 110 (CanLII), specifically the requirement that in order to make out discrimination on the basis of family status for child care, that the child care obligation must engage the individual’s legal responsibility for the child, as opposed to their personal choice. The tribunal also went through other tribunal and arbitrator decisions, as well as other provinces Court of Appeal, which have held that family status for child care or elder care must engage “legal responsibilities” in order to qualify as discrimination. The Tribunal explicitly rejected previous decisions and stated family status should not be treated differently than any other form of discrimination.
The Tribunal held such for the following reasons:
1. The test for discrimination should be the same in all cases as there is no principled basis for developing different tests depending on which ground of discrimination is alleged
2. Different tests for family status has resulted in inconsistency and uncertainty in the law
3. The test for family status has become higher than for other kinds of discrimination
4. The test of legal responsibility is difficult to apply to eldercare, as the legal obligations are not as clear as that of a parent’s legal responsibility
5. Some of the cases have conflated the test for discrimination and accommodation and posited that an applicant should not have to prove that they did not self-accommodate the adverse impact caused by the work place
In the employment context, the Tribunal offered the following to aid with determining whether someone has been discriminated on the basis of family status:
“…the employee will have to do more than simply establish a negative impact on a family need. The negative impact must result in real disadvantage to the parent/child relationship and the responsibilities that flow from that relationship and/or the employee’s work.”
The tribunal continued that the approach for determining whether discrimination has occurred is contextual and “may include consideration of the other supports available to the applicant”, which is relevant to both assessing the need and impact of the alleged discriminatory practise. In other words, the tribunal would take into account the specific needs of each family on a case-by-case basis.
Then once the employee proves that discrimination on the basis of family status has occurred, the onus shifts to the employer to provide that the employee cannot be accommodated to the point of undue hardship. The analysis of the accommodation process will also consider whether the employee cooperated in the process by providing relevant and sufficient details, which remains an obligation of the employee.
For provincially-regulated employees, the tribunal has taken steps to not only clarify the law but has also attempted to offer more protections to people in the parent/child relationship, by attempting to ensure the test remains the same regardless of which ground of discrimination is alleged.
That said, the Johnstone test, which is a more onerous test for family status than other forms of discrimination, is still the law for federally-regulated employees.
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